SAYED NAJAM-UL-HASSAN KAZMI, J. - The question as to whether petitioner was entitled to seek exemption from levy of Income Tax in terms of Clauses 93 and 94 of Ind Schedule of Income Tax Ordinance, 1979 was under consideration of the Income Tax Department and the matter was ultimately taken into consideration by the Tribunal, where the case was remanded for decision afresh, by the assessing officer. Subsequently, notices dated 6.2.1999, 15.3.1999 and 12.4.1999 have been issued by the Deputy Commissioner of Income Tax (Companies) Circle-ll which have been challenged through the present Constitutional petition on the ground that in terms of the remand order, the assessing officer has to determine the question for which the case was sent back and that the Deputy Commissioner of Income Tax, Companies Zone would not take cognizance of the matter.
2. Learned counsel for the petitioner submits that the question of jurisdiction was raised before respondent No. 1 who failed to decide the same and instead expressed his intentions to enter upon the controversy on merits, it is added that in view of the dispute as to jurisdiction of the two officers, the matter was referred to the Regional Commissioner of Income Tax (respondent No. 2) vide letter dated 21.4.1999 but no decision was rendered. Learned counsel submitted that under sub-section
(4) of Section 5 of Income Tax Ordinance, the Regional Commissioner is competent authority to resolve this question but he is not inclined to dispose of the application and in the meanwhile, respondent No. 2 is insisting for continuation of the proceedings.
3. There is no reason, why the respondent No. 2 shall not decide the pending application of the petitioner on merit and in accordance with law, particularly when the question of jurisdiction of respondent No. 1 has been raised in the application. The dispute, being in regard to competency of the officer who has to determine the question in issue, the matter has to be decided one way or the other, it is necessary for the Regional Commissioner to hear view points of both the sides and pass orders, in accordance with the spirit of the order passed by the Tribunal.
4. Learned counsel for the respondents has no objection if the Regional Commissioner is asked to decide the application.
5. For the reasons above, this petition is disposed of with the direction that respondent No. 1 shall decide the pending application dated 21.4.1999 of the petitioner within one month. Respondent No. 1 shall resolve the issue of jurisdiction one way or the other, strictly in accordance with law and thereafter, the question on merit will be decided by the officer who will be found entitled to decide the same in terms of the order of the Regional Commissioner, Income Tax, respondent No. 2.